Strategy of disinformation
The carefully planned and persistent strategy of intermediaries and multinationals to criticise and spread disinformation about the Copyright Amendment Bill has been blatant since the Draft Bill was first published by the Department of Trade and Industry (DTI) for public comment in 2015.
As far back as the multi-stakeholder conference organised by the DTI in 2015, they have ‘trashed’ the Bill, and called it ‘shambolic’, ‘poorly drafted’, ‘substantively garbled, ‘legislative diarrhoea’ and a ‘major problem’ for creators and authors. They have made churlish comments and false assumptions about proponents of the Bill. Opponents of the Bill have constantly ‘demonised’ fair use and called it a ‘free for all’ tool for piracy and mass infringement that will cause ‘catastrophic damage’ to the creative industries and cause serious job losses. All doom and gloom, indeed!
Creatives are doing well in countries in fair use
My recent communications with experts in the IP Offices, or other experts in some countries that have adopted ‘fair use’ in their copyright law, e.g. South Korea, Israel, Philippines, Malaysia, Canada (expanded fair dealing) and Singapore, have presented a much more positive picture about ‘fair use’.
Since adopting ‘fair use’ in their copyright laws, not one of these countries has contemplated removing it or amending it. None of them have been accused of non-compliance with international IP treaties. None of them have found it too cumbersome to administer or to address through their respective courts. None of them have evidence of ‘catastrophic damage’ or any of the doomsday crystal-ball predictions that rightsholders and collecting societies have presented in the media and copyright workshops over the years. These countries have not experienced negativity from foreign investors or creative industries because of ‘fair use’ or other exceptions in their copyright law. It seems their creative industries are productive and doing well. Authors and creators continue to write and create, and creativity and innovation have benefitted from more flexibility and better access to information. The study on Transplanting Fair Use Across the Globe: a Case Study Testing the Credibility of U.S. Opposition corroborates the above positive views on ‘fair use’. The authors claim that “far from being a license to unauthorized copying, fair use offers a conceptual framework for a sophisticated legal analysis weighing the conflicting values and considerations promoted by copyright law.” In the US, which has the largest and wealthiest publishing, entertainment, and IT industries, the value added by fair use industries was 16 percent of the U.S. economy in 2014, and would have increased incrementally since then.
Nigeria has a huge and expanding creative industry and saw fit to include Open fair dealing by including the words ‘such as’ (for more flexibility) and the four factors of fair use in Clause 20 of its new Copyright Act 8 of 2022, although it is still called fair dealing.
Copyright Amendment Bill will benefit creators
The alignment of the Copyright Amendment Bill with the Constitution and human rights conventions and many developed countries’ progressive copyright laws will improve the lives of creators. The Bill will help to ‘level the playing fields’ and give creators better opportunities going forward.
- Sections 6A(1)-9A provide creators with better opportunities to fair royalties and equitable remuneration. Watch video on ‘Actors demand fair royalties’.
- Section 7A-F will enable visual artists to benefit from a resale right.
- Section 12A-D increases access to information, especially in the digital arena. Creators needs access to information to use, re-use, share, and to create new works from other copyright works. It will enable fairer and reciprocal use of copyright works. Currently, countries with ‘fair use’ can lawfully use and reuse South African publications, yet South Africans cannot do the same with their publications, because ‘fair dealing’ is so restrictive.
- Sections 12D(7)(e), 22D and 39B prevent contractual override of lawful exceptions. This will stop third parties locking creators into unfair contracts.
- Helpful exceptions such as in Sections 15(1)(a) and19B-D provide better access for education, academic activities, etc. Authors, creators, musicians, producers and publishers also engage in research, studies, teaching and learning, resource-sharing, AI, quotation, and other activities that require lawful unrestricted access to a wide range of copyright works.
- Sections 12A(vi), 12D and 19B-D enable libraries, archives, and other information services to assist creators when seeking information for personal or creative purposes. These entities will also be able to digitise and preserve their collections to protect our cultural heritage for future generations.
- Section 19D provides for accessible formats for creators who may have dyslexia, visual, aural, or other disabilities. It also will enable South Africa to sign the 2013 Marrakesh Treaty so that accessible formats can be exchanged across borders.
- Section 20(1)-(2) gives creators better protection of their moral rights or reputational rights.
- Section 22A enables creators to use and re-use orphan works (untraceable rightsholders).
- Section 22B regulates collecting societies to ensure they are accredited, transparent and accountable to creators. Section 22B-D and Section 28S will give creators more control over their works and better remuneration. The Performers’ Protection Bill is intrinsically linked to the Copyright Amendment Bill, which means, for the first time, performers will have the right to earn fair remuneration for repeat broadcasts.
- Section 22(3) allows creators to reverse their copyright assignment after 25 years. This means they can then decide to renegotiate with the relevant rightsholders or exploit their works differently or elsewhere.
Intermediaries falsely represent creators
Intermediaries such as rightsholders and collecting societies representing composers and authors of literary and musical works (currently unregulated under our Copyright Act) continue to confuse creators by spreading inaccurate information and sketching dystopian scenarios in the media. At a recent protest march in Johannesburg organised by the Cultural and Creative Industry Federation of South Africa (CCIFSA), an organisation funded by the Department of Sport, Arts and Culture (DSAC), it was blatant how some artists had been ‘coached’ what to say to oppose the Bill, despite the benefits for them. Most participating artists appeared to be confused, especially since they had apparently never read the Bill and did not understand the complexities of copyright law. Some artists didn’t even know the difference between ‘fair dealing’ (i.e. the current legal dispensation applicable in South Africa), and ‘fair use’. They cheered a lawyer from a collecting society for composers’ royalties, and gave her the podium to speak, despite her being there to push her employer’s selfish agenda. The audience clearly believed her disinformation about the effect of ‘fair use’. Ironically, this is the very same collecting society that has been mired in controversy for many years in connection with wasteful expenditure of monies collected for creators, thereby exacerbating their financial hardships. And, ironically, this is the same CCIFSA that is currently under investigation by the Special Investigations Unit (SIU) for the alleged mismanagement of millions of rands of public funds. Clearly, they have no concern about poverty or financial difficulties suffered by artists they claim to represent. How hypocritical!
So, tell me – Who’s ‘pulling the wool over whose eyes’?
25 September 2023